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I-Team: Uncovering Sexual Assault Within the Military

The I-Team has uncovered what really happens to those accused of raping or sexually assaulting their fellow soldier -- and one member of Congress says the National Guard isn't doing enough to protect victims. Chris Glorioso reports. (Published Thursday, July 16, 2015)

How do National Guard units investigate and punish rape in the ranks? Even Congress has had trouble answering that question.

Unlike the U.S. Department of Defense, which publishes annual reports on sex assault in federal military branches, National Guard units are under the authority of state governors. There is no uniform reporting of information about sex crimes and sexual misconduct within specific National Guard units, the I-Team has found.

Strategies for looking into claims vary dramatically from state to state.

In some National Guard units, military personnel have the authority to conduct courts martial. But in New York, New Jersey and Connecticut, civilian law enforcement is tasked with looking into allegations of sex crimes in the National Guard.

To get a better understanding of the differences in sex assault reporting between units, NBC 4 New York's partners at NBC Washington developed and sent in-depth survey questionnaires to every National Guard unit in the nation.

Responses were received from 40 out of 54 units, giving the I-Team the first publicly available numbers on what happens to those accused of raping or sexually assaulting their fellow service members.

The I-Team found 28 out of the 40 states have the ability to conduct a court martial or the equivalent of the federal Article 32 hearing, a preliminary step which could lead to a court martial. Only six states -- Arkansas, California, Louisiana, North Carolina, South Carolina and Wisconsin -- have held a court martial in the last five years to specifically investigate an allegation of sexual assault.

Of the states that responded, only Idaho said it has issued a dishonorable discharge as a result of a sex crime. Arkansas, California and Massachusetts are the only states that reported they incarcerated or confined an alleged offender.

Many states told the I-Team they do not have these options because their state uniform code of military justice, or UCMJ, only allows them to court martial a service member for crimes like "conduct unbecoming" and specifically bars them from using a court martial to investigate rape, murder and other serious crimes.

Fifteen out of the 40 states said they have a specific sex assault statute in their state code.
The vast majority of states, 35 out of 40, told the I-Team they must rely on civilian law enforcement to conduct a criminal investigation and their civilian court system to try the case.

As a result, 25 of the responding units said they rely on other types of discharge, mainly "Less than Honorable" or "General." A handful of states said they have used "Bad Conduct" or "Discharge for Misconduct" as well as removing a service member from federal recognition or the “Active, Guard Reserve” or AGR Program.

More than two-thirds of the responding states reported they issued "letters of reprimand" for sexual assault. Other types of administrative punishment included reduction in rank, barring re-enlistment, Article 15 investigations and "separation for conduct alleged."

Throughout the I-Team's reporting, rape survivors said their alleged attackers were "forced to retire" or "forced to resign." In the I-Team's survey, six states said they pushed offenders to retire. Four states said they "forced a resignation in lieu of" other criminal or administrative action. But many units told the I-Team they can't "force" someone to retire or resign because it is an inherently voluntary act.

According to the I-Team's findings, only six of the responding states held a court martial for sexual assault within the last five years, resulting in three incarcerations and one dishonorable discharge.

Most states used less serious types of discharge, like "General" or "Less than Honorable" discharges, or administrative punishments like letters of reprimand. Some allowed attackers to resign or retire.

"It's insufficient for a serious felony," Gillibrand said. "These are felonies. These are criminal charges in the civilian system if you're convicted of rape. You go to jail. And you go to jail for a long time."

The National Guard Bureau declined the I-Team's request for an on-camera interview, but said in a written statement, "It is a tenet of military command that commanders have unimpeded discretion, without undue influence, to discipline those under their command" and "each case stands on its own merits."

Unlike the rest of the services, the National Guard said it is not required by Congress to collect data on case outcomes. It told the I-Team the National Guard is "making progress" convincing adjutants general to provide this data but "welcomed" a "congressional mandate" to force them to do it because "we feel it is important."

Here are links to all the survey information from the states that responded to the I-Team's survey: